Wednesday, June 8, 2011

A "Deem" to Solve -- Perhaps -- Exec Branch Nominations

Dave Weigel has a very nice article today about the broken executive branch nomination process. I recommend it. Most of it is stats and anecdotes that regular readers here will be either familiar with or find familiar, including the proposal still alive in the Senate to reduce the number of position which must be confirmed by the Senate. I've never been very enthusiastic about that solution; while I don't know exactly how many positions should be subject to the process, I'm very wary of anything that transfers influence away from the Senate and to either the president or, even worse in my view, the bureaucracy.

But I hadn't heard this proposal before:
"You can draw the line," says [former Republican Hill staffer Manny] Miranda, "and people below a certain line—assistant secretary, people below that—are deemed approved and subject to confirmation. They exercise authority until they're confirmed. That would solve this problem you have now, where the acting career person who takes the job while the nominee's frozen is cautious, hesitant to make decisions. I think the president, as a policy matter, deserves to get the names in right away, and get who he wants, instead of getting bureaucrats."
Interesting. I'm not comfortable with it as is; in practice, and without some other changes, this would really cut the Senate out of all those people entirely. That is, unless there were at least sixty votes against confirmation, the Senate would never act -- and even with sixty, they would only act if the leadership wanted the vote (so only with divided government), and even then most likely only in cases of very large supermajorities against confirmation. Since that's virtually never going to happen with second or third-tier positions, the Senate would basically have no say.

How's this for a counter-offer: everyone gets deemed confirmed...but only for some limited time. Say, six months. Non renewable.

If the Senate is incapable of action, then the president gets whoever he or she wants...but has to cycle through people rapidly.

Would that work? I'm really not sure. I'll have to think about it some more. The goal of the process should be, in my view, that the president can get people in place in the agencies who he wants, but that the Senate can use nominations as part of their effort to influence the agencies. I agree with Miranda that a government of civil service placeholders is a lousy idea, but I'm not sure this is the best way around it.

My real executive branch nomination reform proposals would be to dramatically reduce vetting at both the White House and committee level, to lower the votes needed to confirm from 60 back to the traditional simple majority, and for the Majority Leader to refuse to respect partisan holds (yes, that last one would be tricky to administer in practice, but basically I think the Senate has an interest in allowing individual or small-group holds over specific policy issues relating to home-state interests, but not blanket ideological holds). If all that was done, I sort of think that Miranda's proposal would no longer be needed, but I'm not entirely sure of that, especially for cases of divided government.


  1. Re: your proposal--is having a rotating string of six-month appointees really any better than having an acting secretary? I don't see how it would improve on the current situtation--six months is hardly enough time to learn about (let alone steer) an entire cabinet department.

  2. Would that be constitutional? "Advice and consent" is an extremely flexible phrase, but strictly speaking, the President appoints cabinet members and the Senate just consents to them. Putting conditions on that consent might be too far.

    I wouldn't be terribly surprised if there's already precedent on this matter to the contrary. But in principle, it does seem like a potential area for conflict.

  3. How could you tell the difference between logrolling and partisan holds? There's always some local issue that can be dredged up to support a hold. If I remember aright, you are fine with holds on nominees entirely unrelated to the reason for the hold; if that's fine, where is the practical lessening of holds?


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